Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982

Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982

Leave was granted because the report relied upon by the plaintiff was based upon material, including evidentiary statements served after the pre-filing statement, which was not reasonably available at the time; denial of leave would substantially prejudice the plaintiff, satisfying the requirements of s 318(2) WIM Act.

Jurisdiction
Australia
Judgment Date
11 August 2023
Procedural Posture
Principal Judgment / Interlocutory Application on Leave to Amend Claim and Rely on Further Expert Report
Outcome
Leave granted to rely on expert report and file amended statement of claim; case management orders made.
Legal Topics
['pleadings Amendment' 'workplace Injury' 'expert Evidence' 'procedural Leave' 'case Management']
['civil Procedure' 'workers Compensation'] ['pleadings Amendment' 'workplace Injury' 'expert Evidence' 'procedural Leave' 'case Management']

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Procedural Posture

Principal Judgment / Interlocutory Application on Leave to Amend Claim and Rely on Further Expert Report

Legal Issues

  1. 1 ['Whether leave should be granted to plaintiff to rely on an expert report not disclosed in pre-filing statement' 'Whether leave should be granted to plaintiff to file the further amended statement of claim under s 318 Workplace Injury Management and Workers Compensation Act 1998 (NSW)' "Interpretation of 'materially different' under s 318(1)(a) WIM Act" 'Whether the material concerned was not reasonably available when the pre-filing statement was served']

Ratio Decidendi

Leave was granted because the report relied upon by the plaintiff was based upon material, including evidentiary statements served after the pre-filing statement, which was not reasonably available at the time; denial of leave would substantially prejudice the plaintiff, satisfying the requirements of s 318(2) WIM Act.

Court Disposition

Leave granted to rely on expert report and file amended statement of claim; case management orders made.

Orders

  • ["Pursuant to s 318 WIM Act, leave to rely on Mr Luke Murphy's report dated 5 October 2022 granted." 'Pursuant to r 64 Uniform Civil Procedure Rules 2005 (NSW), leave to file further amended statement of claim granted.' "Second defendant to pay plaintiff's costs of the motion." 'Parties to participate in mediation...